Great America Construction Company

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of -- )
)
Great America Construction Company ) ASBCA Nos. 60437, 60501
)
Under Contract No. W5KA4N-l l-C-0181 )
APPEARANCE FOR THE APPELLANT: Mr. Mansour Alamyar
Vice President and PM
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
MAJ Cali Y. Kim, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE
GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
The government moves for summary judgment that appellant has released all
claims under the contract referenced above.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
The following is not in dispute. On 27 September 2011, appellant and the
government entered into the above-referenced construction contract, to be performed
in Afghanistan (R4, tab 1 at 1-2). On 9 January 2012, the government terminated the
contract, in part, for convenience (R4, tab 4). In February 2012, appellant and the
government entered a modification to the contract agreeing to a settlement amount of
14,573,191.92 Afghanis (AFN), and stating, without reservation, that:
The Contractor releases and forever discharges the
Government from all liability and from all existing and
future claims and demands that it may have under this
contract, insofar as it pertains to the contract.
(R4, tab 19 at 3)
In May 2012, the government paid appellant AFN 9,914,410.22, and, in
August 2012, the government paid appellant AFN 4,666,486.92, for a total of
AFN 14,580,897.14 (the government says that the excess is interest), which the
government says equated to $299,028.34 at the time of payment (R4, tabs 23-24, 28-29;
gov 't mot. at 5, ,-r,-r 16, 18 & nn.2-3 ). On 3 February 2016, appellant filed what it called a
"Complaint letter" (which was docketed as ASBCA No. 60437) asserting that the
government had forced it to accept the settlement amount. On 26 February 2016 we stayed
that appeal pending a contracting officer's final decision upon a claim the contractor had
presented. On 8 March 2016, the contracting officer denied appellant's certified claim, in
which appellant had requested $210,000 because, appellant said, the government had
forced it to enter into the modification (R4, tab 30 at 2-3, ,-r,-r 2, 9, tab 31). 1 Appellant
timely filed an appeal of the final decision, which was docketed as ASBCA No. 60501 on
13 March 2016. Finding that the appeals concern the same matter, we consolidate them for
decision.
DECISION
Summary judgment shall be granted if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.
Avant Assessment, LLC, ASBCA No. 58867, 15-1 BCA ,-r 36,067 at 176,129 (citing
FED. R. C1v. P. 56(a)). To counter a motion for summary judgment, more than mere
assertions are necessary. Thorington Electrical and Construction Co., ASBCA
No. 56895, 10-2 BCA ,-r 34,558 at 170,418. Conclusory assertions do not raise a
genuine issue of fact. Id. The non-movant must submit, by affidavit or otherwise,
specific evidence that could be offered at trial. Id. Failing to do so may result in the
motion being granted. Id.There is no dispute that the government paid the settlement amount pursuant to
a contract modification releasing the government from all claims under the contract,
without reservation. Such a general release bars all claims. Space Age Engineering,
Inc., ASBCA No. 18086, 73-2 BCA ,-r 10,150 at 47,724. In opposing summary
judgment, appellant says that it "was forced to accept the [settlement] amount," and
that the contracting officer "said if we not accept the amount the well change the
termination status and also will not pay us" (app. opp'n at 1 (syntax in original)).
However, appellant neither points to nor presents any evidence whatsoever to support
its opposition to summary judgment. Consequently, without addressing whether, if
true, what appellant describes could constitute duress, see generally Cantril!
Development Corp., ASBCA No. 30160 et al., 89-2 BCA ,-r 21,635 at 108,849 (stating
that duress requires that the circumstances permitted no other alternative), appellant
presents no issue for trial. Accordingly, the government is entitled to judgment as a
1
Although the contracting officer found that appellant had requested $210,700,
apparently based upon a table set forth in the claim, we find that appellant
claimed $210,000, based upon its statement in the claim that "[w]e are seeking
our right and amount of $210,000 which the Government has to pay us" (R4,
tab 30 at 2, ,-r 9 (emphasis added; tab 31 at 1)).
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matter of law. Cf Thorington, 10-2 BCA ~ 34,558 at 170,418-19 (applying release; no
evidence submitted in opposition to summary judgment).
CONCLUSION
The motion for summary judgment is granted, and the appeals are denied.
Dated: 2 August 2016
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
~/
``R~ £¥ ru~
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the Armed
Services Board of Contract Appeals in ASBCA Nos. 60437, 60501, Appeals of Great
America Construction Company, rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
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